The Corsair

Mr. Justice Brown, after stating the case, delivered the opinion of the court. This was a libel m rem against the tug Corsair, by the mother of one Ella Barton, to recover for the loss of her life in a collision alleged to have been occasioned by the negligence of those in charge of the tug. Exceptions to this libel were sustained, upon the ground that a suit in rem would not lie for injuries resulting in death; but leave was given to amend by proceeding in personam against the owners of the tug. Exceptions were also filed to the amended libel upon the ground that the amendment introduced a new party to the suit, and, as against such party, the year had elapsed within which, under the law, the action must be brought. 1. The decree of dismissal so far as it operated upon the amended libel, was proper for two reasons: First, the amendment to the original libel by introducing the owners of the tug as parties defendants was in violation of Admiralty Rule 15, providing that “in'all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship. alone, oí against the master or owner alone m personam.” These rules, from 12 to 20 inclusive, were intended to prescribe a remedy appropriate to each class of cases in admi *342 ralty, allowing in certain cases a joinder of ship and freight, or ship and master, or alternative actions against the ship, master or owner alone. In no case, however, under these rules, except in possessory suits, can the ship and owner be joined in the same libel, though .perhaps they may be in cases not falling within the rules. These rules were adopted in pursuance of an act of Congress of August 23, 1842, (5 Stat. 516,) authorizing this court, amongst other things, to prescribe “ the forms and modes of proceedings to obtain relief ” in suits in admiralty, and have always been regarded as having the force of law. They are little more than a recognition and formulation of the previous practice of courts of admiralty in this country and in England. They have come before this court in several instances, and have always been treated as obligatory. Thus in Newell v. Norton, 3 Wall. 257, the District Court, in accordance with the prayer of the libel, issued process in rem against the vessel for a collision, and -citations in personmi against the master, owner and pilot. On exceptions being filed for misjoinder, the court ruled that an action against the owner and pilot could not be joined with the proceeding in rem, and that the libellant must elect which remedj^ he Would pursue; and, he having elected to proceed' in rem against the steamboat and in pjersonam against the master, the libel was dismissed as to the owners and pilot, and sustained as against the steamboat and master. The allowance of this amendment was held by this court to be proper, Judge Grier observing, however, that the objection that a libel in rem against a vessel and in personam against the “ owner ” cannot be joined was properly overruled. .The word “ owner ” here is evidently a misprint for' “ master,” as appears from the syllabus and statement of the case on page 259. Kule 19, prescribing the mode of proceeding in cases of salvage, was discussed byMr. Justice Clifford in the case of The Sabine, 101 U. S. 384, in which 'he said that there was no authority'for holding that salvors may proceed against the ship and cargo m rem, and in personam against the consignees of the. cargo, in the same libel, as the rule gave only an alternative remedy in rem against the property saved, or in personam against the *343 party at whose request or for whose benefit the service had been performed. He found there was no well-considered authority which gave any countenance to the theory that the two modes of proceeding in rem, against the ship and cargo, and in personam against the owners of the same, might • be joined in the same libel; citing Schooner Boston, 1 Sumner, 328, and The Hope, 3 C. Rob. 215. He spoke of the nineteenth rule as “ expressed throughout in the* disjunctive form, and .plainly requires the action, if against the property saved or the proceeds thereof, to be in rem,, the alternative clause clearly referring to a case where the property saved has been sold, and the proceeds of the sale have been deposited in the registry of the court.” A like construction has uniformly been given to this rule by the; Circuit and District Courts. The Richard, Doane, 2 Ben. 111, (Mr. Justice Blatchford ;) The Zodiac, 5 Fed. Rep. 220, 223, (Judge Choate;) Atlantic Mutual Insurance Co. v. Alexandre, 16 Fed. Rep. 279, (Judge Brown;) The Young America, Brown’s Admiralty, 462. Judge Longyear’s citations in the last case intimate that a similar practice prevailed in England, at least until- the adoption of the Judicature Act. 2 Oonkling’s- Admiralty, 43; 2 Parsons’ Shipping and Admiralty, 378. Second. If the so-called amended libel be considered as an independent libel against the owners in personam, then it is clearly defective in. failing to aver that the respondents were the owners of the tug at the time of the accident. 2. An important question arises in connection with the dismissal of the original libel, which has never been squarely presented to this court before, and that is as to the power of the District Court to entertain a libel in rem for damages incurred by loss of life, where by the local law a right of action survives to the administrator or relatives of the deceased, bqt no lien is expressly created by the act. A similar question arose in the case of Ex parte Gordon, 104 U. S. 515, where a writ, of prohibition was applied for to enjoin tlm prosecution of an action in rem for loss of life ; but the writ was denied upon the ground that the liability was within the jurisdiction of *344 the District Court to decide, and any error it might commit in this particular could only be corrected by appeal. Subsequently in the case of The Harrisburg, 119 U. S. 199, it was held that in the absence of an act of Congress of a state statute giving a right of action therefor, a suit in admiralty could not be maintained to recover damages for the death of a human being, caused by negligence. This was a mere application to the court of admiralty of a principle which had been announced by this court as applicable to courts of common law in Insurance Co. v. Brame, 95 U. S. 754. The Harrisburg was a Pennsylvania vessel, and the collision occurred in the waters of 'Massachusetts, both of which States gave a remedy by civil action, with a proviso that such action should be brought within one year after the death; and while the question of the right to sue in rem for the recovery of such damages when an-action at law had been given therefor by the state statute, was presented in that case, it was not decided, since the suit was not begun until nearly five years after the death, and the case went off upon that ground. Prior to this decision, a number of libels both in rem and in personam had been brought for loss of life in the courts of different districts, and, as a rule, the liability was held to exist, but the, question whether such liability should be enforced in.rem or in personam does not seem to have been discussed, except in the cases of The Sylvan, Glen, 9 Fed. Rep. 335, and The Manhassett, 18 Fed. Rep. 918, in one of which Judge Benedict, and in the other Judge Hughes, held, that, while the state statute created a right it did not create a hen, and that a libel in rem could not be maintained. Since the decision in the Harrisburg Case,'that no libel can lie, except where a right to sue is given by a local statute, the question has been presented only in the case of The North Cambria, 40 Fed. Rep. 655, in which Judge Butler adopted the views expressed in The Sylvan Glen and The Manhassett. In The Oregon, 45 Fed. Rep. 62, a. lien was given by the state statute and was enforced in the Admiralty. A similar question under Lord Campbell’s Act allowing damages to be recovered “ whensoever the death of a person *345 shall be caused by wrongful act, neglect or default,” has been the subject of much discussion in the courts of England. By the Admiralty Court ■ Act of 1861, sec. 7, jurisdiction was given to the High Court of Admiralty over “ any claim for damage done by any ship,” and by sec. 35 “ the jurisdiction conferred by this act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam.” Giving a construction to these provisions,-it -was held by Sir Robert Phillimore in 1867, in The Sylph, L. R. 2 Ad. & Ec. 24, that personal injuries were included by the words “ damage done by a ship,” and that proceedings in rem might be taken for damages occasioned by such injuries. In the subsequent case of The Guldfaxe, L. R. 2 Ad. & Ec. 325, the same rule was applied to .a suit for damages instituted by the personal representatives of a seaman who had been killed in a collision. This was subsequently affirmed in The Explorer, L. R. 3 Ad. & Ec. 289, decided in 1870. The same question came before the Court'of Queen’s Bench hpon an application for a writ of prohibition in the case of Smith v. Brown, L. R. 6 Q. B. 729, in 1871, wherein it was held that the "word “damage” did not include loss of life and personal injury, and that the Admiralty Court Act conferred no jurisdiction upon the High Court of Admiralty to entertain a suit under Bor'd Campbell’s Act. The judgment of the court in this case was delivered by Lord Chief Justice Cockburn, and concurred in with some doubt by Mr. Justice Blackburn. Notwithstanding this prohibition, however, the Court of Admiralty continued to assume jurisdiction of actions in rem brought by the personal representatives of a, deceased person. This appears from the case of The Franconia, 2 Prob. Div. 163, Sir Robert Phillimore-being of the opinion that he was bound by the case of The Beta, L. R. 2 P. C. 447, in which the judicial committee of the Privy Council had held that the word “ damage ” referred to injuries to the person as well as to property. On appeal to the Court of Appeal, his judgment was affirmed by a divided -court. The question was again raised before the Admiralty", Division of the High Court of Justice, in the chse of The Vera Cruz, 9 Prob. Div. 88, in *346 •which Mr. Justice Butt did not discuss the question, but held, in deferehce to the previous decisions of Dr. Phillimore, that an action in rem would lie by the widow and administratrix of the master of a British schooner against the Yera Cruz, and that the plaintiff should recover a moiety of the damage she had sustained, both vessels being adjudged to be in fault. On appeal the Court of Appeal, 9 Prob. Div. 96, held that it was not bound by its former decision by a divided court in the case of The Franconia, and reversed the judgment of the Admiralty Division. The case was again appealed to the House of Lords, and the judgment of the court below was affirmed. 10 App. Cas. 59, 65, 66, 67, 73. Lord Chancellor Selborne in delivering the opinion held that the 35th section of the Admiralty Court Act above cited showed that “ while an option to proceed in rem or in personam is given as to the jurisdiction conferred by the act, yet from the very nature of such an option every case provided for by the act is regarded as a proper case for a proceeding in rem; and accordingly the appellant, considering that the 7th section brought cases under Lord Campbell’s Act within the purview of the Admiralty jurisdiction, justly upon that hypothesis held it to mean such actions as were capable of being brought by a proceeding like the present in rem; and if the action cannot be so brought, then I apprehend it will follow ex converso that the 7th section does not extend to this description of claim.” “No one can say,” said he, “ that Lord Campbell’s Act relates expressly to claims for damage done by ships; and this section in the act of 1861 relates to that and to nothing else. . . . Every word of that legislation ” (Lord Campbell’s Act) “ being as it appears to me, legislation for the general case, and not for particular injury by ships, points to a common law action, points to a personal liability, and a personal right to recover, and is absolutely at variance with the notion of a proceeding in rem? Lord Watson concurring, said: “ I entertain no doubt that a right of action such as is given- by Lord Campbell’s Act in a case like the present is not a ‘ claim for damage done by a ship’ within the meaning of the 7th section of the Admiralty Court Act, 1861.” *347 This is the last expression of the highest court of England upon the question of proceeding in rem under Lord Campbell’s Act, and must be regarded as settling the law of that country that such jurisdiction is not conferred. That, notwithstanding this, an action in personam will lie i-n the Admiralty Division is evident from the case of The Bernina, 11 Prob. Div. 31, in which the Admiralty took cognizance of the case, and upon appeal to the Court of Appeal, 12 Prob. Div. 58, and subsequently to the House of Lords, 13 App. Cas. 1, the jurisdiction was sustained, a trial by jury being now permitted.in that court, although the main question discussed was as to the principle involved in the casé of Thorogood v. Bryan, 8 C. B. 115, which was overruled. While these cases turn upon the construction of the English- acts, the courts have been guided in such construction by principies which are of general application both in this country and in England. A maritime lien is said by writers upon maritime law to be the foundation of every proceeding in rem in the Admiralty. In much the larger class of cases, the lien is given by the general Admiralty law, but in other instances, such for example as insurance, pilotage, wharfage, and materials furnished in the home port of the vessel, the lien is given, if at all, by the local law. As we are to look, then, to the local law in .this instance for the right to take cognizance of this class of cases, we are bound to inquire whether the local law gives a lien upon the offending thing. If it merely gives á right of action in personam for a cause of action of a maritime nature, the District Court may administer the law by proceedings in personam, as was done with a claim for.half pilotage dues under the law of New York, in the case of Ex parte McNiel, 13 Wall. 236, but unless a lien be given by the local law, there is no lien to enforce by proceedings in rém in the Court of Admiralty. The Louisiana act declares, in substance, that the right of action for every act of negligence, which causes damage to another, shall survive, in case of death, in favor of the minor children or widow of the deceased; and in default of these,-in favor of the surviving father and mother, and that such sur *348 vivors may also recover the damages sustained by them by the death of the parent, child, husband, or wife. Evidently nothing more is here contemplated than all ordinary action according to the course' of the law as it. is administered in Louisiana. There is no intimation of a lien or privilege upon the offending thing, which, as we have already held, is necessary to give a court of admiralty jurisdiction to proceed in rem. 3. We do not find it necessary to express an opinion whether a libel in rem will lie for injuries suffered, by the deceased before her death, a right of action for which pásses to the immediate relatives, under the Louisiana statute, since there is no' proper averment in the libel to show that such damages were suffered. It is true that the seventh paragraph alleges that from the time the “ tug struck the bank of the river to the time she sunk,” (about ten minutes,) “ and the said Ella Barton was drowned, she, said Ella Barton, suffered great mental and physical pains and shock, and endured the tortures and agonies ■of death.” But there is no- averment from, which we can gather that these pains and sufferings were not substantially •cotemporaneous with her death and inseparable as matter of law from it. Kearney v. Boston & Worcester Railroad, 9 Cush. 108; Hollenbeck v. Berkshire Railroad Co., 9 Cush. 478; Kennedy v. Standard Sugar Refinery, 125 Mass. 90; Moran v. Hollings, 125 Mass. 93. Had she suffered bodily wounds and bruises, from the result of which she lingered and ultimately died, it is possible that her sufferings during her illness would give a separate cause of action; but the very fact that she died by drowning indicates that her sufferings must - Lave been brief, and, in law, a mere incident to her death. Her-fright for a few minutes is too unsubstantial a basis for a separate estimation of damages. The decree of the court- below is, therefore, Affirmed.